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NACWA and its municipal clean water utility members won a major legal victory May 25 when a federal court in Seattle ruled  that federal government facilities are responsible for payment of municipal stormwater fees, including fees billed prior to January 2011.  The decision by the United States District Court for the Western District of Washington in United States v. Cities of Renton and Vancouver embraces arguments made by NACWA in a supporting brief  filed in February that a 2011 amendment to the Clean Water Act (CWA) clarifying federal responsibility for municipal stormwater charges also applies to fees billed prior to the amendment’s enactment.  The court cited heavily from the NACWA brief in finding that the amendment is a clarification of a pre-existing waiver of federal sovereign immunity for stormwater fees, requiring federal payment for pre-2011 unpaid amounts.  NACWA played a critical role two years ago in securing Congressional passage of the stormwater fee amendment, and last week’s court decision marks a continuation of the Association’s advocacy on this critical issue to help ensure municipal stormwater utilities receive payment from federal government facilities.

Summary of Decision

In making its decision, the court explicitly rejected arguments from the federal government that the 2011 amendment created a new payment obligation on federal government properties, and thus could not apply to stormwater charges assessed prior to its enactment.  The court extensively reviewed the bill’s legislative history – provided by NACWA in its brief – when making this determination, finding that “the amendment’s title and legislative history….indicate that the Stormwater Amendment was a clarification rather than a substantive amendment.”  The court went on to note that the “legislative history and statutory text demonstrate that even before the Stormwater Amendment, the Clean Water Act waived the government’s sovereign immunity and was clear in the requirement that the government pay reasonable service charges.”  The court also stated that the amendment “merely stresses the government’s existing responsibility to pay stormwater system fees by setting down common, long-standing requirements for the reasonableness of regulatory fees....Thus, it is clear ‘in light of traditional interpretive tools’ that Congress waived the Federal Government’s immunity from reasonable service charges prior to January 4, 2011.”

Additionally, the court’s decision found that federal government facilities are required to pay municipal stormwater fees regardless of whether the charges are billed as a fee or a tax, explaining that the 2011 amendment “unambiguously states that the government is subject to reasonable service charges ‘regardless of whether that fee, charge, or assessment is denominated as a tax.’  Accordingly, even if the stormwater management fees are characterized as taxes, the clarification provided by the Stormwater Amendment indicated that Congress had waived immunity to such taxes even prior to the amendment.”

The court’s ruling also dismissed challenges from the federal government that it was exempt from payment since it had never voluntarily requested stormwater services and was not receiving any direct benefit from municipal stormwater management.  The court found this line of argument unpersuasive, noting that the “text of the Clean Water Act requires compliance rather than choice with respect to local requirements, process, sanctions, and charges for stormwater management.”  The court went on to say that “moreover, nowhere in the Clean Water Act does it require that charged services be to the government’s benefit.  Rather, it directs the United States to comply with requirements ‘respecting the control and abatement of water pollution.’”

Finally, the court rejected an argument by the federal government that it is exempt from municipal stormwater fees if those fees exceed the actual costs related to nearby municipal stormwater management facilities and infrastructure.  Instead, the court pointed out that the 2011 stormwater amendment allows for charges to federal facilities that cover the “full range of costs” for the stormwater management program – including any programmatic and structural costs – as long the charges are proportional to the facility’s contribution to stormwater pollution.

The court closed its decision by noting that while the legal issue of whether the federal government was responsible for pre-2011 stormwater fees was resolved, the municipalities in question in the case – including NACWA member the City of Vancouver – still needed to present factual evidence to prove that their stormwater fee programs meet the required elements set out in the 2011 amendment.  However, given the strong decision by the court in favor of the municipalities on the legal issues – and the guidance provided by the court on the remaining factual issues – the cities feel confident of their ability to prevail on the remaining factual questions at trial.

Implications for NACWA Members

This decision is major victory for NACWA and its municipal stormwater utility members, clarifying in unambiguous legal terms the federal responsibility for stormwater fee payment.  The ruling will be especially beneficial for any stormwater utilities seeking to collect unpaid stormwater charges from federal facilities, whether in a formal litigation context or in more informal negotiations with delinquent federal properties over unpaid bills.  NACWA encourages any utility members seeking to recover such outstanding payment amounts to use this court decision in discussions with federal agencies.

Additionally, this decision can be very helpful for any stormwater utility facing federal non-payment of stormwater charges – whether past-due or current – because of federal claims that the charge represents an “impermissible tax.”  As this ruling makes clear, Congress has directed federal payment of these charges regardless of whether they are expressed as a fee or tax.

The decision could also be helpful for utilities that are dealing with general challenges to their stormwater fee systems, especially challenges focused on the “voluntariness” or “benefit” of stormwater management programs.  Although this case dealt specifically with federal obligations under the CWA, the court’s broader language about the CWA being a statute focused on “compliance rather than choice” could be beneficial in explaining the fundamental regulatory nature of most municipal stormwater fee programs.

NACWA will continue to monitor any developments regarding this litigation, including any possible appeals and resolution of the remaining factual issues, and keep the membership updated on developments.  NACWA was joined on its brief by the American Public Works Association (APWA) and the National Association of Flood & Stormwater Management Agencies (NAFSMA), and thanks those two organizations for their continued support on this important issue.

Additional information on this case is available on NACWA’s Litigation Tracking webpage.  Anyone with questions about the case or the court’s decision can contact Nathan Gardner-Andrews, NACWA’s General Counsel, at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .